With updates to willful violations, inspection targeting of workplace compliance, multi-employer workplaces, post-accident drug testing, duplicative citations and all-new health and safety standards, it’s been a surprisingly busy year at OSHA! As 2018 comes to a close and we begin to set our sights on 2019, it’s important to take a look back at some of this year’s most significant updates to OSHA regulatory and enforcement policy, and assess their potential impact on your business as we move into the New Year…and beyond.
A recent case in the U.S. Court of Appeals for the 11th Circuit sought to answer the question of whether employers may be cited for willful violation of OSHA standards, even when the employer claims they were unaware of their requirements under the standard.
In short, the answer is yes.
The citation at appeal was originally issued in to a Georgia mechanical contractor after an employee suffered a fatal fall while installing HVAC equipment on the roof of a warehouse in 2015. The installation was performed within 4 feet of several skylights, each of which was 15 feet off the floor below. According to OSHA investigation findings, the skylights were unguarded and the employees were not wearing fall protection equipment, even though the foreman had such equipment on-site in his truck.
Despite multiple appeals to the Occupational Safety and Health Review Commission (OSHRC) and an Administrative Law Judge (ALJ), the 11th Circuit upheld the willful violation, stating that:
“To establish a willful violation, OSHA must establish either: (1) [that the] employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard or (2) that, if the employer did not know of an applicable standard or provision’s requirements, it exhibited such reckless disregard for employee safety or the requirements of the law generally that one can infer that … the employer would not have cared that the conduct or conditions violated [the standard].”
Based on this first criteria, the crucial piece of evidence in upholding the willful violation was that the foreman had actually warned his crew members multiple times to stay away from the skylights. This confirmed that, despite his awareness of the hazards, the foreman did nothing to abate that hazard beyond his verbal warnings. He did not instruct employees to wear fall protection, and failed to provide fall protection equipment — even though such equipment was available on-site.
The 11th Circuit concluded that the finding of willfulness is not negated by the foreman’s lack of familiarity with the fall protection standards required under the regulation. The Court determined that, in this case, the employer was aware of the risks posed by working on the warehouse roof, but deliberately chose to ignore them.
With regard to the Court’s second criteria for willful violation of workplace compliance, even if an employer could demonstrate they genuinely were not aware of their applicable compliance obligations, it would then be at the discretion of OSHA, the ALJ, or OSHRC to judge whether the employer’s ignorance of the requirements constituted a “reckless disregard” for employee safety and workplace compliance. Several factors would contribute to such a finding, including the employer’s past compliance history, current compliance programs and activities, and the severity of risk associated with the alleged violation. Being able to quickly demonstrate to an OSHA inspector that your workplace has a formal health & safety compliance program in place, and that you are making an earnest effort towards protecting your workers will go a long way in helping to reduce the potential for a willful violation.
OSHA announced this past October that it would, once again, be implementing a Site-Specific Targeting (SST) program to help guide the agency’s inspection and enforcement priorities in 2019. The SST program will allow OSHA to more accurately allocate enforcement resources to “high injury rate establishments” using data collected from Form 300A workplace injury and illness records.
Between 1995 and 2014, OSHA’s previous SST program relied on data obtained from the OSHA Data Initiative (ODI), which collected injury and illness data from approximately 80,000 establishments in “selected high-hazard industries.”
The ODI has since been replaced by OSHA’s Improve Tracking of Workplace Injuries and Illnesses final rule (a.k.a. the Electronic Reporting Rule), which requires establishments with 250 or more employees, as well as those with 20 to 249 employees in selected high risk industries, to electronically submit their Form 300A data on an annual basis through OSHA’s online Injury Tracking Application (ITA). The Electronic Reporting Rule significantly expands the number of employers who must submit Form 300A data, with an estimated 350,000 employers subject to the new reporting requirements as of 2017.
Armed with this massive amount of new data, OSHA’s current SST program will be able to more accurately target inspection and enforcement activities on establishments with the highest rates of injuries and illnesses, and equip the agency to better protect the safety and health of American workers. For employers in high risk industries or at establishments with high rates of injuries and illnesses, it means more intense and focused scrutiny from regulators moving forward.
On November 26, 2018, the U.S. Court of Appeals for the 5th Circuit (which includes Texas, Louisiana and Mississippi) ruled that OSHA can rightfully issue citations to general contractors who fail to control hazardous conditions at multi-employer worksites, even if those conditions do not directly affect their own employees. This ruling greatly aids workplace compliance as it forces contractors to be responsible for subcontractor employees operating at their sites.
The ruling stems from a case involving a general contractor whose subcontractor hired a secondary subcontractor to perform excavation work at a construction site in 2015. That secondary subcontractor failed to implement a protective system (e.g., sloping) when performing excavation, resulting in a “nearly vertical wall” of soil that was piled approximately 12 feet high.
Soon after, OSHA received a complaint describing hazardous working conditions at the site. The inspector who responded to the complaint witnessed three employees working “at the base of an unprotected wall of excavated soil” in full view of a city building inspector, general contractor superintendents and subcontractor personnel.
OSHA fined the general contractor $70,000 for one willful citation as the “controlling employer” under OSHA’s Multi-Employer Citation Policy. That policy states that “a controlling employer” has “general supervisory authority” over a worksite, including the power to correct safety violations or compel others to correct them.
The general contractor subsequently appealed the citation to the OSHRC, who deferred to a 1981 decision in Melerine v. Avondale Shipyards, Inc. that stated “OSHA regulations protect only an employer’s own employees.” Based on the ruling in Melerine, the OSHRC held that the general contractor could not be held liable for subcontractor employees’ exposure to the hazard, and vacated the citation.
OSHA later appealed that decision and the matter was brought before the Fifth Circuit. With its November 26 ruling, the Fifth Circuit joins seven other U.S. Circuits in affirming the responsibilities of “controlling employers,” as well as the joint liability of general contractors and subcontractors for complying with OSHA health and safety standards on multi-employer worksites.
Post-Accident Drug Testing
In an October 11, 2018 memo, OSHA has clarified its stance on employer post-accident drug testing policies as they relate to the anti-retaliation provisions of OSHA’s recently published Improve Tracking of Workplace Injuries and Illnesses rule.
Those provisions were originally intended to prevent employers from using drug testing, or the threat of a drug test, to discourage workers from reporting workplace injuries and illnesses. Despite their original intent, the post-accident drug testing provisions created potential conflicts with employers’ requirements under state workers’ compensation laws, and many employers argued that the provisions stifled their ability to ensure a safe, drug-free workplace.
With the new memo, OSHA openly acknowledges the value of conducting post-incident drug testing to promote workplace safety and health. However, OSHA reminds employers that any workplace post-incident drug testing policy that penalizes employees for reporting a work-related injury or illness, rather than legitimately promoting workplace safety and health, constitutes a violation of OSHA’s anti-retaliation provisions at 29 C.F.R. § 1904.35(b)(1)(iv).
OSHA does provide several examples of workplace drug testing policies that, in most instances, are in compliance with its ant-retaliation provisions. They include:
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Whatever post-incident drug testing policy you choose to implement in your workplace, it is important to keep in mind that as the employer, you bear the burden of proof when it comes to demonstrating compliance with OSHA’s anti-retaliation provisions. As a best practice, you should always perform detailed incident reporting that includes the specific circumstances surrounding an incident, any witness accounts or statements, and any other evidence that may help establish legitimate cause for post-accident testing, or otherwise risk potential non-compliance with OSHA’s anti-retaliation provisions.
It is often the case that multiple OSHA standards apply to a single workplace compliance hazard or incident. These are known as “duplicative citations.” In the event of an OSHA inspection or investigation, duplicative citations may be issued, resulting in multiple violations and rapidly mounting fines and penalties.
One of many examples where duplicative citation may apply relates two requirements at 29 CFR 1910.252(a)(2)(vi)(C) and 29 CFR. § 1910.252(a)(3)(i). The first requirement prohibits welding, cutting and brazing “in the presence of explosive atmospheres […] that may develop inside uncleaned or improperly prepared tanks or equipment which have previously contained such [flammable] materials, or that may develop in areas with an accumulation of combustible dusts.”
The second requirement states that “no welding, cutting, or other hot work shall be performed on used drums, barrels, tanks or other containers until they have been cleaned so thoroughly as to make absolutely certain that there are no flammable materials present or any substances such as greases, tars, acids, or other materials which when subjected to heat, might produce flammable or toxic vapors.” You can easily see how these two overlapping requirements might be considered to apply to the same hazard or activity. Nonetheless, an OSHA inspector may potentially issue citations for violation of both of these standards concurrently.
In the past, the OSHRC has been reluctant to uphold duplicative citations upon appeal. In many cases, the commission has vacated duplicative citations based on the argument that, “the standards cited require the same abatement measures, or […] abatement of one citation item will necessarily result in abatement of the other item as well.”
However, the Secretary of Labor has recently advocated for use of a “multi-factor and fact-based” test when defining duplicative citations. This test contains five specific criteria:
- The conditions giving rise to the violations are the same or very similar
- The two standards violated are closely related sister standards
- The two violations occurred on the same date and at the same location, and the facts supporting both violations are the same
- The same employees were exposed to the hazards involved in the two violations of workplace compliance
- Compliance with one standard would ordinarily presuppose or substitute for workplace compliance with the other, and the same abatement would abate both violations.
A case involving duplicative citation is currently under appeal in the U.S. Second Circuit, and should these criteria be applied in that Court’s decision, many believe it would become easier for OSHA to issue multiple citation items for single hazards and/or incidents in future cases. For employers, the take-home point here is that having a comprehensive, top-down compliance management program in place that accounts for ALL applicable health and safety requirements is the best defense in avoiding duplicative citations.
Proposed OSHA Standards
In its Semiannual Agenda of Regulations published to the Federal Register on November 16, 2018, the U.S. Department of Labor announced that it has moved four of its long-term OSHA regulatory actions to the pre-rule stage. This signals the possibility of four all-new OSHA standards moving to the proposed rule and/or final rule stages in 2019. These standards include:
- Communication Tower Safety
- Emergency Response and Preparedness
- Tree Care Standard
- Prevention of Workplace Violence in Health Care and Social Assistance
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